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ISSUE FIVE CLOTH FAIR CHAMBERS

CLOTH FAIR CHAMBERS

IAN WINTER QC CORPORATE TOWARDS AN AMERICAN APPROACH TO SENTENCING AND THE MANAGEMENT OF THE PRISON POPULATION CORPORATE : THE 2007 ACT MANSLAUGHTER: THE 2007 ACT

“I WANT TO DIE LIKE MY GRANDFATHER; PEACEFULLY IN HIS SLEEP, NOT SCREAMING LIKE HIS PASSENGERS.” Anonymous

ISSUE FIVE SPRING 2008 PUBLISHED BY CLOTH FAIR CHAMBERS CLOTH FAIR CHAMBERS

CLOTH FAIR CHAMBERS SPECIALISES IN AND COMMERCIAL , COMPLEX AND ORGANISED CRIME, REGULATORY AND DISCIPLINARY MATTERS, AND IN BROADER LITIGATION AREAS WHERE SPECIALIST ADVOCACY AND ADVISORY SKILLS ARE REQUIRED.

2 CLOTH FAIR CHAMBERS ALSO IN THIS ISSUE TOWARDS AN AMERICAN APPROACH TO SENTENCING AND THE MANAGEMENT OF THE PRISON POPULATION by NICHOLAS PURNELL QC PAGE 14

CORPORATE MANSLAUGHTER: THE 2007 ACT

“I WANT TO DIE LIKE MY GRANDFATHER; PEACEFULLY IN HIS SLEEP, NOT SCREAMING LIKE HIS PASSENGERS.” Anonymous

IAN WINTER QC

Since 1373, when the principles of the modern the harder it was to identify a particular ‘directing company were enshrined and the veil of corporate mind’ who had himself or herself acted in a grossly immunity first drawn, countless numbers have died negligent way. As a result since 1992 only seven at the hands of corporate negligence, their deaths companies have ever been successfully prosecuted unaccounted for in the jurisprudence of our criminal for manslaughter and all of those were small courts. It is said that globally more people die each companies. The high profile prosecutions of the year at work or as a consequence of corporate error large companies have recorded a litany of failure: than are killed in wars. In the UK alone over forty the Herald of Free Enterprise disaster in 1987, the thousand people have been killed in work related Southall rail disaster in 1997, the gas explosion at circumstances in the last ten years. On 6 April 2008 Larkhall in 1999, the Paddington rail crash in 1999 and for the first time in over six hundred years and some twenty-seven others since 1996. The companies responsible for causing death by gross Corporate Manslaughter Act 2007 has been enacted management failings will themselves be guilty of to deal with this problem and to fix corporate manslaughter, not as the by-product of the gross in companies whose safety management negligence of one of their directing minds, but as systems fall grossly below the duties of care they statutory felons themselves. This will at a stroke owe. By s.20 of the Act the Common Law offence introduce over two million potential new UK of gross negligence manslaughter for is corporate clients into the criminal justice system. abolished.

Few could argue with the need for a new law. The THE OFFENCE old law in relation to corporate killing required the prosecution to identify a ‘directing mind’ at a senior Section 1 makes ‘an organisation’ guilty of corporate level in the company in whom could be established manslaughter if “the way in which its activities are not just the embodiment of the decisions of the managed or organised (a) causes a person’s death, company but also its actions. It was not possible to and (b) amounts to a gross breach of a relevant duty aggregate the various individual pieces of of care owed by the organisation to the deceased”. negligence for which many operatives might have ‘Organisation’ is defined as (and only as) a been responsible so as to fix the company with that , a police force, a partnership/trade collective guilt. As a result, the larger the company union/employers association that is an employer and the more complex its management structures, and the government and non government

3 CLOTH FAIR CHAMBERS departments listed in Schedule 1 to the Act. The the new offence. Companies that have safe Schedule contains a long list of such bodies and operating systems ought not to fall foul of the law includes the Crown Prosecution Service which raises and certainly would not do so just because of the the intriguing prospect of the Director of Public individual negligence of an operative. The company Prosecutions having to give the for his own that employed the grandfather in the quotation at prosecution [s.17]. the head of this article would not be liable for the deaths of the screaming passengers unless it had ‘Corporation’ includes any body corporate, failed to ensure that his working hours and wherever incorporated [s.25]. This means that the conditions were such that he ought not to have suggestion made by some commentators in the fallen asleep. press, that the levels of fines for corporate manslaughter might drive the head offices of UK In fact, even if those working hours and conditions corporations abroad, is unfounded. A company were not wholly safe the company would still not would be guilty of manslaughter and justiciable in be liable for corporate manslaughter unless the England and Wales if the death occurred here as a conduct that amounted to the breach of the duty of result of the gross breach of a relevant duty of care care fell “far below what can reasonably be owed by that company to the deceased. It would expected of the organisation in the circumstances” make no difference that the company responsible for [s.1(4)(b)]. This preserves the essential test of liability the death was incorporated in Panama. Limited identified by the House of Lords in R v Adomako Liability Partnerships created under the Limited [1995 1 AC 171. It is not mere negligence therefore Liability Partnerships Act 2000 (LDP’s and MDP’s) are that will attract criminal sanction under the Act; covered because they are bodies corporate. The Act such negligence is actionable in the civil courts, only does not however apply to corporations sole, so the negligence so gross as to amount to criminal Archbishop of Canterbury can relax! negligence will result in conviction.

Other partnerships are only covered by the Act if Because the offence concentrates upon they employ people. Partnerships covered by the management failure – systemic failure leading to a Partnership Act 1890 and limited partnerships gross breach of duty – a question arises as to covered by the Limited Partnership Act 1907, if they whether liability under the Act could be avoided by employ people, are included in s.1(2)(d). Partnerships delegation. If the board of a company delegated its that do not amount to a separate legal identity are safety systems to an outside company that also covered [s.14] in which case the proceedings are specialised in installing and running safe systems of to be brought in the name of the partnership and work, could that delegation result in the company not in the name of any of the members of the escaping liability? The government believes that the partnership. Again, liability will only fix in answer to this question is no but the Act does not partnerships that employ people. It would appear say so. There is no clause preventing the delegation therefore that a partnership with no employees of legal responsibility for safety management issues. could not be prosecuted for corporate A company that delegated such safety management manslaughter for causing the death of a person by issues could only be prosecuted for a subsequent the gross breach of a duty of care. In practice death if the decision or process that lead to such however in such circumstances it would usually be delegation was itself grossly in breach of a duty of relatively straightforward to fix liability in the care. It might be very difficult to criticise a company individual responsible for the death. for outsourcing its safety management to a specialist company. On the other hand a company Importantly, an organisation is only guilty of that failed to monitor the performance of that corporate manslaughter “if the way in which its specialist company might be said to have acted activities are managed or organised by its senior negligently by wilfully thereafter shutting its eyes to management is a substantial in the breach” the safety issues. Alternatively, does it really matter of the duty of care [s.1(3)]. ‘Senior management’ which of the two companies is prosecuted for the means those persons who play significant roles in death (assuming that the specialist safety company “(i) the making of decisions about how the whole or is ‘an organisation’ covered by the Act)? a substantial part of [the organisation’s] activities are to be managed or organised, or (ii) the actual THE RELEVANT DUTY OF CARE managing or organising of the whole or a substantial part of those activities” [s.1(4)(c)]. This So far so good, now for the hard part. The Act only means that management failure is at the heart of applies to ‘relevant duties of care’. Not all duties of

4 care are covered by the Act and the relevant duties Act. The following sections (ss.3-7) exempt various of care do not apply equally to all organisations. organisations from the full scope of s.2 in various This is to cover organisations such as the National ways. Further, the Act in so far as it relates to the Health Service trusts, the army and those prison service and to duties of care in respect of performing public functions so as to limit the extent prisoners, will not be brought into force with the of their liability. It was concern in relation to rest of the Act on 6 April 2008. No date has been organisations such as those, that lead to the delay in published for when those provisions will be in force. the passing of the Act and the limitation of liability All the duties of care that exist under the law of in that regard was the trade-off required for the negligence will apply to those activities conducted passing of the Act. The ‘relevant duty of care’ is on a commercial basis covered by s.2(1)(c). It would defined in terms of the law of negligence. The appear therefore that the full range of negligence is relevant duties of care are as follows: covered by the Act. This includes those areas of negligence where the Common Law has been s.2(1)(a): A duty owed to the organisation’s replaced by a Statute such as the Occupiers’ Liability employees or those working for it or Acts 1957 and 1984 and the Defective Premises Act performing services for it. 1972. The Act does not however cover the full range of negligence where the activity being carried out is s.2(1)(b): A duty owed as occupier of premises. not on a commercial basis. Employers’ and occupiers’ liability will be covered in such cases but s.2(1)(c): A duty owed in respect of the supply of not the wide range of negligence covered by goods or services, or in connection with s.2(1)(c). This is deliberate so as to exclude from any construction or maintenance liability those public bodies performing activities for operations, or in connection with ‘any the benefit of the community or the policy making other activity on a commercial basis’, or decisions of central government such as the setting in connection with the use or keeping of of regulatory standards. any plant, vehicle or other thing. The Act makes clear that whether a particular s.2(1)(d): A duty owed to someone in custody or organisation owed a duty of care to the deceased is secure accommodation or who is being a question of law and “the judge must make any transported in pursuance of prison findings of fact necessary to decide that question” escort arrangements or who is a detained [s.2(5)]. The Crown Court bench will therefore have patient, and that person is someone for to brush up on its law of ! This is a critical whose safety the organisation is section of the Act. The prospect of successfully responsible. defending a prosecution on the basis that the duty of care was not breached will be slim: the person It is clear therefore that as a result of s.2(1)(c) all died. The cases in which it might be possible to activities of a commercial nature are caught by the argue that the breach of the duty did not cause the

“I’ve decided to step down as your CEO in order to spend more time in jail...” www.CartoonStock.com

5 CLOTH FAIR CHAMBERS death will be rare since the chain of is organisations covered by the Act and their seldom broken by an intervening act. Once a judge employees, sub-contractors, sub-contractor’s has ruled that the organisation owed a relevant duty employees, customers, facility users and general of care to the victim the only questions for the jury passers-by, to suggest that the questions in relation will be whether the victim died as a result of the to the existence of a duty of care will ‘generally be breach, whether the breach was gross and whether uncontroversial’ is little short of extraordinary. To the breach was as a result of the organisational consider that such questions of fact would not failures of senior management. In order to make the ordinarily ‘otherwise affect the case’ is, it would decision about the existence of the relevant duty of appear, to misunderstand the nature of a criminal care the judge must resolve the relevant issues of trial. For both the judge and the jury to be fact. Such issues of fact will be right at the heart of separately responsible for making findings as to the the case since what the victim and the organisation same facts is likely to give rise to problems where were doing at the time of the incident, resulting in different conclusions as to those facts are reached. death, will be the central facts in the case. By resolving the factual question – as to whether what In the example at the head of this article the judge was happening at the time of the incident gave rise would have to resolve whether the train company to a relevant duty of care to the victim on the part owed a duty to the screaming passengers. In order to of the organisation – the judge will have resolved do so he might have to decide, as a fact, whether the the central facts upon which the jury will decide grandfather was an employee of the train company whether the breach of the duty was gross. at the time of the incident. Let us further assume that there are complex issues of fact and law as to The government has recognised that decisions whether he was. The judge hears the on a about such questions of fact are ‘usually for the jury’ voir dire and finds that the grandfather was an [Explanatory Notes to Corporate Manslaughter Act employee of the company at the time of the 2007 ISBN 9780105619079] but considers that “The incident and accordingly that the company owed a questions of fact that the judge will need to duty of care to the screaming passengers. consider will generally be uncontroversial and in any event will only be decided by the judge for the There is no issue as to causation, the grandfather fell purposes of the duty of care question. If they asleep, the train hit the buffers and all were killed. otherwise affect the case, they will be for the jury The live question for the jury is whether the breach to decide”. Given the diverse and complex nature of of the company’s duty of care was gross. Obviously the relationships between the millions of different the breach of the grandfather’s duty of care was gross but that is not the relevant duty of care for the company. The question in relation to the company was whether the manner in which the company was organised by its senior management was a substantial element in the grandfather falling asleep. This may well involve consideration of the same complex issues of fact relating to whether the grandfather was an employee of the company at the time of the incident e.g. had he been suspended pending medical treatment for his narcolepsy. Those questions of fact will ‘otherwise affect the case’ and therefore will be for the jury to decide as indeed is recognised in the Explanatory Notes.

What therefore happens to the findings of fact made by the judge? He cannot direct the jury to accept his findings of fact he can only direct them that as a matter of law he has found there to be a relevant duty of care. The possibility therefore plainly exists for the jury to find core facts to be different to those upon which the judge has ruled there to be a “It’s comforting to know that we have relevant duty of care, not by revisiting the question safety boots and hats.” as to whether there was a duty of care but in deciding whether the breach of that duty of care www.CartoonStock.com

6 was gross. The jury might in law therefore have to matters of public policy’ are not covered by the return a verdict of guilty notwithstanding that they Act. This specifically includes decisions relating to disagreed with the finding of fact upon which the the allocation of public resources [s.3(1)]. It would ruling as to the existence of the duty was based. The appear therefore that a death in hospital caused by a jury would be bound to follow the judge’s ruling in decision to apply funding elsewhere would not law that the company owed a duty to the result in liability. Duties of care owed by public passengers even though on the basis of the facts as authorities in respect of things “done in the exercise they had found them to be the company did not. of an exclusively public function” are not covered by the Act unless the duty of care is in relation to The overlap between these two central issues is employers’ or occupiers’ liability or in relation to highlighted by s.8 of the Act. The section applies someone for whose safety the organisation is where “(a) it is established that an organisation responsible [s.3(2)]. It would appear therefore that a owed a relevant duty of care to a person, and (b) it death in hospital caused by a decision to apply falls to the jury to decide whether there was a gross funding that was not implemented would not result breach of that duty” [s.8(1)]. The section requires in liability unless the failure to implement the that the jury ‘must’ consider whether the evidence decision grossly breached duties owed as an shows that the organisation failed to comply with employer or occupier or to a person for whose any health and safety legislation that relates to the safety the hospital was responsible. Would, for alleged breach and if so how serious the failure was example, a gross failure to put in place proper and how much of a risk of death it posed [s.8(2)]. cleaning processes in the hospital so as to remove The jury ‘may also’ consider the extent to which the the MRSA superbug be regarded as a breach of the evidence shows that there were attitudes, policies, occupier’s duty to provide a safe place for those systems or accepted practices that were likely to lawfully present? Would that still be the case if the have encouraged any failure to comply with any presence of the superbug was due to the ‘decision’ health and safety legislation or to have produced to apply resources to holistic masseurs rather than tolerance of such failure and may have regard to any cleaners? Is a Primary Care Trust responsible for a health and safety guidance relating to the alleged patient’s ‘safety’ in the sense that the patient should breach [s.8(3)]. The question as to whether the be kept safe from the activities of a superbug? breach of the duty was gross when compared to the Duties of care owed by public authorities in respect health and safety legislation and the practices or of “inspections carried out in the exercise of a attitudes in relation to it will of cover the statutory function” are not covered by the Act same factual ground that the judge has covered in unless the duty of care is owed as employer or relation to the existence of the duty. occupier [s.3(3)].

But enough of the digression. The ‘relevant duty of The Ministry of Defence is exempted from liability care’ in s.2 is affected by two important clauses in under s.3(1) in so far as its decision-making relates s.2(6). Any rule of the Common Law that has the to matters of public policy and under s.3(2) in so far effect of preventing a duty of care from being owed as its actions do not breach its duties as employer by one person to another by reason of the fact that and occupier. Similarly in respect of peacekeeping they are jointly engaged in unlawful conduct is ‘to operations, operations and operations in be disregarded’. So too is any rule of the Common relation to civil unrest or serious public disorder in Law that has the effect of preventing a duty of care the course of which members of the armed forces from being owed by one person to another by come under attack or face the threat of attack or reason of his acceptance of a risk of harm. The first violent resistance all liability in relation to whatever of these clauses presents few problems; it would be duty of care is excluded [s.4(1-2)]. Liability is also absurd for criminal liability for manslaughter to be excluded in relation to activities carried on in avoided because of the joint illegality of the activity preparation for or directly in support of such that resulted in death. The second however relates operations [s.4(1)(b)]. Likewise liability is excluded in to where a person accepts the risk of harm. This relation to training of a hazardous nature which is might have ramifications for those involved in considered necessary in order to improve the organising dangerous activities such as motor sport. effectiveness of the armed forces in relation to such operations. Duties of care owed in relation to Sections 3 to 7 exempt various organisations and hazardous training otherwise than in preparation for certain activities conducted by such organisations peacekeeping, terrorism, civil unrest or public from the full scope of s.2. Duties of care owed by disorder, such as the routine training to be a soldier public authorities in respect of any ‘decision as to are not exempted by the Act. All duties of care

7 CLOTH FAIR CHAMBERS owed in relation to the activities of the special medical treatment is carried out or to decisions forces are excluded from liability. James Bond can taken in relation to the carrying out of such relax! The Act makes no mention of liability during treatment [s.6(3&4)]. war but the law of negligence recognises that military authorities rarely owe a duty of care in such It is likely that such treatment and decisions would circumstances in any event. already be exempt under s.3 where it amounts to an exclusively public function. Emergency Similar provisions exempt the activities of police circumstances are defined by s.6(7) of the Act as forces and other law enforcement bodies when “circumstances that are present or imminent and engaged in operations for dealing with terrorism, (a) are causing, or are likely to cause, serious harm civil unrest or serious disorder as part of carrying or a worsening of such harm, or (b) are likely to on the activities of policing or law-enforcement cause the death of a person”. ‘Serious harm’ and officers come under attack or face the threat includes “serious harm to the environment of attack or of violent resistance in the course of (including the life and health of plants and those operations [s.5]. The exemption applies to animals)” [s.6(7)(b)]. This appears to exclude any duty of care owed by a police force in relation liability for a company which knocked down and to ‘other policing or law enforcement activities’. killed a pensioner whilst racing to protect some Such duties of care are not ‘relevant duties of care’ trees from the imminent threat of being chopped unless owed as employer or occupier or to down! Subsection 8 extends the definition of someone for whose safety the police force is emergency circumstances to “circumstances that responsible. This provision [s.4(3)] is very similar to are believed to be emergency circumstances”. This that in s.3(3) which applies only to the exercise of would appear to exclude liability for the company an exclusively public function. It appears therefore racing because it thought that some trees were in that where the police are concerned, duties owed imminent threat of being chopped down! in relation to exclusively public functions are excluded from liability under s.3(3) and in relation Duties of care owed by local authorities, probation to all other policing or law-enforcement activities boards and other public authorities to children and under s.4(3). In neither case are the duties owed as those covered by the Children Act 1989 and Part 1 employer, occupier or to someone for whose of the Criminal Justice and Court Services Act safety the police are responsible exempted from 2000 are not relevant duties of care unless owed liability. Deaths in custody would accordingly be as employer, occupier or to someone for whose covered by the Act either under occupier’s liability safety the organisation was responsible. or because the police were responsible for the detainee’s safety. Deaths caused by police chase It is plain therefore that the questions as to incidents would not be covered by the Act unless whether an organisation owed a duty of care to the one of the deceased was working for the police victim and if so whether the duty of care was a force. This could lead to the extraordinary result of relevant duty of care for the purposes of the Act the police force potentially being liable for the are complex questions of fact and law. A thorough death of the driver of the police vehicle, himself understanding of the law of negligence will be responsible for the crash, but not for the primary required to resolve them plus a detailed school children crossing the road. The duty is construction of the Act so as to decide whether owed as employer and not therefore to people the organisation in question or the activity it was who are employed. performing falls within ss.3-7. These decisions must be made by circuit judges and recorders and Duties of care owed by certain organisations in are decisions that in many cases might effectively respect of the way they respond to emergencies determine guilt or innocence of corporate are not relevant duties of care and are not covered homicide. All the more important therefore that by the Act unless the duty of care is owed as companies and organisations involved in employer or occupier [s.6]. Those organisations are someone’s death take early and high quality advice fire and rescue authorities and “any other so that such issues may be focused upon from the organisation providing a service of responding to outset. Perhaps more important still, those emergency circumstances”, ambulance services, companies and organisations whose activities blood/organs/equipment or personnel transport in expose persons to the risk of death should address pursuance of ambulance services, the armed forces their health and safety systems in the light of the and relevant NHS bodies [s.6(e-i)]. The section Act both so as to reduce the risk of death but also does not apply however to the way in which to ensure that should a death occur the company

8 www.CartoonStock.com can demonstrate that it did not occur as a result of of justice would so require a second prosecution. the gross failures of senior management. This provision removes the privilege against re- incrimination (autrefois convict). It will be interesting FACTORS FOR THE JURY to see whether the appeal courts treat it in the same way as they did the removal of the privilege As has been considered above the decisions as to against re-trial (autrefois acquit). whether the organisation owed the deceased a duty of care and whether that duty of care was a relevant The jury ‘may’ also consider the extent to which the duty of care are matters for the judge to resolve evidence shows that there were attitudes, policies, both as to fact and law. It is for the jury to resolve systems or accepted practices within the questions of causation and whether the breach of organisation that were likely to have encouraged a duty that caused the death was a gross breach. In failure to comply with any health and safety doing so the jury ‘must’ consider whether ‘the legislation or to have produced tolerance of such evidence’ shows that the organisation failed to failure [s.8(3)]. The judge will therefore have to comply with any health and safety legislation and if direct the jury that they ‘must’ consider whether a so how serious was that failure and how much of a failure to comply has been proved but need not go risk of death the failure posed [s.8(2)]. This means on to consider circumstances that might have that the jury will have to be taken to all the health caused that failure. It is unclear why Parliament and safety legislation, directed as to how it should thought it appropriate to make the first mandatory be read and instructed to apply the evidence as they and the second discretionary. Both s.8(2) (the find it to the relevant parts of that legislation. mandatory part) and s.8(3) (the discretionary part) specifically relate to ‘the evidence’ in that the jury Section 19 makes it clear that an indictment may must/may consider whether the evidence shows contain a count of corporate manslaughter and a such a failure and the reasons for it. Subsection (b) count alleging a health and safety offence and that of s.3 allows the jury to “have regard to any health the jury may “if the interests of justice so require, be and safety guidance that relates to the alleged invited to return a verdict on each charge”. An breach”. This does not mention ‘the evidence’ and as organisation may also be charged with the health worded could mean that the jury could call to be and safety offence after it has been convicted of given health and safety guidance. It is likely that the corporate manslaughter in respect of ‘some or all’ of courts will rule that s.8(3)(b) means that the jury a ‘particular set of circumstances’ if the interests of may have regard to any health and safety guidance justice so require [s.19(2)]. It is very difficult to that has been adduced in evidence. If however imagine a set of circumstances where the interests the jury called for such guidance during the

9 CLOTH FAIR CHAMBERS

“Go ahead and dig, you said! What are the odds there’s a pipe right there, you said!” www.CartoonStock.com evidence it would appear that the judge would not turnover rather than profit could and ordinarily be able to refuse the request unless he could rule would cause serious injustice. A company may that such guidance was irrelevant. In certain turnover billions of pounds but make only a small industries the health and safety guidance may well profit. How could such a company pay a fine way in be extensive and complex. It certainly would excess of the profit it makes? The proposal would include any “code, guidance, manual or similar also fall foul of the sentencing principle that the publication that is concerned with health and safety punishment should fit the crime rather than the matters” [s.8(5)]. criminal. A death caused by a rich company is not more serious than one caused by a poor company Section 8(4) makes it clear that the jury may have only because the company is rich. A crime is more regard “to any other matters they consider serious than another because of the manner of its relevant”. Again it is likely that the courts will rule commission, in these circumstances because of the that this means ‘any other matters’ that have been grossness of the breach. Additionally, setting tariffs adduced in evidence. Otherwise it would mean such as those would place a value on the life of the that the jury would determine the relevance of deceased that might have ramifications in the civil evidence to be adduced and could call for whatever suit that could mirror the criminal action. It would be they wanted. It is likely that the courts will rule that inappropriate for the criminal courts to become s.8(4) is simply there to prevent any argument to the involved in valuing the life of the particular effect that s.8 had restricted the areas that the jury deceased. Furthermore it would not appear to be could consider. In other words that s.8(4) simply right that the company should be made to pay a fine preserves the right of the jury to consider all the and possibly thereby divert finances away from any evidence called before it and to give such weight to civil suit in which the victim’s family may be seeking it as they consider proper. access to the same pot to compensate for the negligence involved. PENALTIES In addition to a fine, the sentencing court has power There have been scare stories in the press that to make a ‘remedial order’ [s.9]. The prosecution consideration is being given by the Sentencing must apply for a specific remedial order that may Guidance Council to recommending a tariff for the order the convicted company to take certain steps to fines for corporate manslaughter of between five and remedy the breach or any matter that appears to ten percent of a company’s turnover. This does not have resulted from the breach and to remedy any seem very likely since attaching a financial penalty to deficiency in respect of health and safety matters.

10 The order may be in such terms as the court to pay the additional fine than it would be to considers fit and the court may hear evidence in publicise its negligence. In fact of course in such respect of any matter before making the order. cases the prospects of the matter not being Before making an application for such an order the reported in any event are slim and this would prosecution ‘must’ consult with the relevant probably be sufficient to ensure compliance with enforcement authority. Whether the failure to do so both the remedial order and the publicity order. would result in an ultra vires remedial order remains to be seen. It is probable that the courts would find CROWN IMMUNITY AND that this mandatory condition would not render a TRANSFER OF FUNCTIONS subsequent order invalid if not complied with. The order must specify the period of time within which Currently, under the principle of Crown immunity, compliance with the order must occur and such the Crown and its servants and agents cannot be period may be extended on application made prior prosecuted for gross negligence manslaughter. This to the expiration of the period. A company in breach privilege is removed by s.11 of the Act. Departments of a remedial order is guilty of an offence and may and corporations that are servants or agents of the be fined but interestingly cannot in such Crown are to be treated as owing whatever duties of circumstances be made to comply with the original care they would owe if they were a corporation that remedial order. was not a servant or agent of the Crown. This places such organisations on a broadly level playing field The court may also order that the convicted with the private sector save that public bodies have organisation be made to publicise the fact of the the exceptions to liability provided in ss.3-7. conviction, the specified particulars of the offence, the amount of any fine imposed and the terms of In relation to public organisations only, where a the remedial order made [s.10]. Before doing so the death is alleged to have occurred in connection with court ‘must’ ascertain the views of the relevant the carrying out of functions by a department or enforcement authority and ‘must’ have regard to any body listed in Schedule 1 to the Act, or by a representations made by the convicted organisation. corporation that is a servant or agent of the Crown It is more likely that the courts would find that a or by a police force and the functions in question failure to comply with this requirement rendered the have been transferred to another organisation then order invalid. The order must specify the period of that new organisation may be prosecuted for the time within which the publicity must be made but breach of duty occasioned by the previous there is no provision for that period to be extended. organisation [s.16]. This does not apply to the private An organisation that fails to comply with the order is sector for obvious reasons. guilty of an offence and may be fined but cannot be ordered to comply with the original publicity order. No individual may be convicted of corporate A company would not want its customers to know manslaughter or of aiding, abetting, counselling or of its conviction or of its failure to comply with the the commission of an offence of remedial order (meaning that the risk of death corporate manslaughter [s.18]. Individuals may continued). It might be more ready to be convicted however be prosecuted under the Common Law for of the failure to comply with the publicity order and gross negligence or unlawful act manslaughter.

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11 CLOTH FAIR CHAMBERS

This raises the possibility of a trial in which an organisations address their safety systems and individual director or employee or director faces management processes so as to become risk averse. personal manslaughter charges and the company A company that can demonstrate that its senior faces corporate manslaughter charges. The issues management has focused on producing safe are of course very different and the likelihood of systems of work will be highly unlikely to be cut-throat defences is high. In particular the prosecuted or convicted. As such, this Act is as causation issues in such a trial are very different. much about prevention as it is about securing The personal defendant will have to be shown to conviction. The government is not expecting there have caused the death by his gross negligence or to be more than some ten to thirteen additional unlawful act whereas the company will have to be prosecutions a year as a result of the new offence. shown to have caused the death by the gross breach of its duty of care to the victim brought about by CONCLUSION the organisational failures of senior management. This Act is an important piece of legislation that will There may well be cases where neither is make it easier to prosecute companies for gross established. In some cases it may not be possible to breaches of the duties of care they owe persons attribute sufficient negligence in the hands of the with whom they come into contact. It is imperative individual for him to be guilty of manslaughter that company directors and those in charge of the because his negligence was not gross. His various organisations covered by the Act focus on negligence might however be sufficient to mean this legislation, understand how it affects them and that the death was not caused by the failures of put in place systems to prevent accidents and to senior management. He might, for example, have promote safety. The mere fact of being able to failed to comply with safety systems but not in a demonstrate such focus will, of itself, go a manner that was gross. In such cases neither the considerable distance in defeating any prosecution. individual or the company could be convicted over It follows that those involved in advising companies the death. about their legal responsibilities will have to add advice about this Act to the increasingly large The Act does not legislate for this eventuality and portfolio of guidance in respect of deliberately so. The government considered that it that concerns the day to day running of a company. would be wrong and contrary to the public interest In the light of this Act, to the noise of the screaming to render organisations criminally liable for every passengers must now be added the thud as the death that occurs in connection with their activities. directors put their collective heads in their hands. The central purpose of this Act is to ensure that

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12 TOWARDS AN AMERICAN APPROACH TO SENTENCING AND THE MANAGEMENT OF THE PRISON POPULATION

NICHOLAS PURNELL QC

The Lord Chancellor has invited Guy Beringer QC, of January and is meeting on a fortnightly basis at Senior Partner of Allen & Overy, Christopher Murray, the Home Office, supported by a secretariat drawn Senior Partner of Kingsley Napley and me to serve from the Ministry of Justice and the Home Office. as the private practitioner members on the The Chairman and some of the members of the Sentencing Commission Working Group under the secretariat have paid a flying visit to two American chairmanship of Lord Justice Gage. This Working States where Sentencing Commissions are well Group comes into being as a consequence of the established. Report “Securing the Future” which, in December 2007, published the findings and recommendations The time-table set by Lord Carter and accepted by of Lord Carter’s Review of Prisons. the Lord Chancellor defeats the description of ‘tight’. Accordingly the Working Group is looking to The Report made a number of detailed increase the frequency and duration of meetings in recommendations towards the efficient and order to consider the advantages and disadvantages sustainable use of custody in England and Wales of such a radical proposal. directed at the management, capacity and operational efficiency of the prison estate. In Importantly the time available for the essential addition, Lord Carter recommended an examination element of consultation with the wider public and of different ways of addressing the sentencing of in order to obtain the valuable input of experienced defendants in criminal cases. practitioners will be severely curtailed. The Working Group intends to issue a consultation paper at the Lord Carter made this recommendation: end of March 2008 with a response deadline of the “The Government should establish a working group 2 June 2008. to consider the advantages, disadvantages and feasibility of a structured sentencing framework and The American experience suggests that, within the a permanent Sentencing Commission and report to context of State criminal justice systems, the the Lord Chancellor and Lord Chief Justice by existence of a permanent sentencing commission summer 2008. A framework and Commission could provides a greater degree of sentencing consistency allow for the drivers behind the prison population across the court-rooms and a higher level of to be addressed and managed in a transparent, predictability of future prison populations. consistent and predictable manner through the Moreover in the systems which were visited, the provision of an inclusive set of sentencing ranges.” sentencing commission is asked to provide a ‘fiscal assessment’ of the likely cost implications for all Lord Carter added this rider: “A structured legislative proposals for new offences before the sentencing framework proposal does not mean decision to enact such legislation is made. that individual sentencers have to have regard to resources at the time they in The work of the Group will require a detailed individual cases.” examination of the differences between the American system in practice and current procedure The Working Group was appointed in the last week and practice in England and Wales. There are

13 CLOTH FAIR CHAMBERS obvious differences, such as the division in America consuming and necessary. As a consequence, between State and Federal prosecutions and the to date there have been just three sets of formalised plea bargaining which takes place in guidelines issued. more than 90% of disposals. However the significance of these differences has to be analysed. One element which is missing from the Council’s work is any requirement for the Council to have Moreover a proper assessment of the way regard to resources in framing guidelines although sentencing occurs in England and Wales (and an it must have regard, by reason of section 170(5) of examination and assessment of the existing the 2003 Act, to the cost of different sentences methods of data collection and analysis of the and their relative effectiveness. sentences passed) are essential parts of the Working Group’s studies. Ministerial to legislate to introduce a requirement for the Council to have regard to Indeed for my part I need to identify and current and likely future resources when framing understand what are ‘the drivers behind the prison the guidelines was frustrated by the 2005 General population’ which need to be addressed and Election and was not subsequently revived. managed. There can be little doubt that whatever the impact A structured system of sentencing is predicated of a structured framework might be upon the upon a hierarchy of criminal offences which under individual sentencer at the time of an individual current practice we do not have. sentence, one element of such a structured framework would be the introduction The aim of a structured sentencing system in and evaluation of resource considerations into the America is to render sentences in all cases within a work of the Commission. This ‘fiscal evaluation’ is range of severity which is proportionate to the seen as an important and valuable part of the gravity of the offences. American sentencing commission process.

In England and Wales, the sentencer approaches There can be no question that government the task of sentencing in a broader context, striving has a legitimate and necessary interest in the to impose a penalty which reflects the justice of the formulation of criminal justice policy and the case by balancing the gravity of the offence and its resource consequences of the way in which consequences with the culpability and that policy is implemented by the sentence of circumstances of the offender. the court.

The more interesting question, perhaps, is whether THE CURRENT ADVISORY BODIES the framework or practice within which the judge is IN ENGLAND AND WALES required to sentence should itself be shaped or influenced by resource implications. THE SENTENCING ADVISORY PANEL The work of the Sentencing Advisory Panel dates Consistency and predictability are important from its creation in the Crime and Disorder Act values. The Carter Report laments that the 1998. An independent non-departmental body, “complexity and uncertain effect of external drawing its membership from the judiciary and factors makes the sentencing framework opaque. representatives from the wider criminal justice Predicting the factors that determine and system, the Panel has the task of consulting and influence sentencing is therefore difficult and proffering advice to the Court of Appeal. inhibits government decision-making and planning on the use of finite resources.” THE SENTENCING GUIDELINES COUNCIL Since the enactment of the Criminal Justice Act The tension, perhaps, is the degree to which the 2003, the Sentencing Guidelines Council, chaired judiciary should become engaged in the law- by the Lord Chief Justice and with a majority making and resource scrutiny role of a sentencing judicial membership, is the body to which the Panel commission and whether the judge, in passing now reports. The Council frames or revises sentence, is engaged in a function which is sentencing guidelines. The Council is only four primarily to do justice to the case or to fit an years old and the process of consulting, offender within a framework built upon a hierarchy considering and formulating guidelines is both time of offence seriousness.

14 Both are legitimate ends. The contrast reflects a If you have views which you would like express in difference in culture and experience. The adversarial writing you can submit them direct to the system within which we practise does not extend secretariat by sending them to Ruth Allen, to engaging the prosecution in a pre-trial, The Sentencing Commission Working Group, Home pre-sentence process which will fix the offence Office, 2 Marsham Street, London SW1P 4DF. within a comparatively narrow range. In some States in America this is accompanied by an automatic Lord Carter’s Review of Prisons: “Securing appellate procedure where judges ‘depart’ from the Future” may be downloaded from the guidelines. www.justice.gov.uk.

The judges visited in America were clear that they If you would prefer to contribute more informally did not consider that a sentencing commission and please do not hesitate to contact me or Christopher framework acted as a constraint upon their Murray to make your views known. discretion or individual responsibility. Whether that would be the reaction of the judiciary in this The purpose of this advanced notice is principally jurisdiction remains to be seen. to compensate for the abbreviated time-scale of the proposed consultation process and to enable Christopher, Guy and myself to access the THE NEXT STAGES widest possible experience and knowledge from fellow practitioners. The Working Group is intending to hold a number of meetings with interested parties before the curtailed The ramifications and consequences of a consultation process begins. A meeting with the development of these proposals would clearly be circuit judiciary has been arranged and an open far-reaching and constitutionally significant. conference will be held on 30 April to which bodies and organisations with an interest in the criminal justice system and members of the public will be invited to attend.

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15 CLOTH FAIR CHAMBERS

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